Weston v. Kelso

Filing 10

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/13/17 ORDERING the Clerk of Court assign a District Judge to this action. Also, RECOMMENDING that defendant's motion to dismiss 7 be denied as moot; and the complaint be dismissed without prejudice and this case closed. MOTION to DISMISS 7 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN F. WESTON,

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No. 2:17-cv-0384 CKD P

Plaintiff,
v.

ORDER &

J. CLARK KELSO,

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FINDINGS AND RECOMMENDATIONS

Defendant.

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I. Introduction
Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This action was originally filed in the Sacramento County Superior Court. Defendant

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Kelso removed it to federal court on February 21, 2017. See 28 U.S.C. § 1442(a).

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II. Screening Standard

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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III. Discussion

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The sole named defendant in this action is J. Clark Kelso, the court-appointed Receiver

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for the prison health care system in Plata v. Schwarzenegger, C01-1391 TEH (N.D. Cal.). Like

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numerous other prisoner actions in this district, plaintiff’s complaint concerns a May 16, 2016

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“Notice of Data Breach” which informed inmates that, on February 25, 2016, a password-

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protected state laptop, possibly containing inmates’ personal information, was stolen from a

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prison staffer’s vehicle. (ECF No. 1 at 21.) Plaintiff claims this incident has put him at risk of

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having his confidential information misused, and that prison officials responsible for the incident

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have violated his legal rights.

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Plaintiff is required to establish standing for each claim he asserts. DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006). If a plaintiff has no standing, the court has no subject matter
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jurisdiction. Nat’l Wildlife Fed’n v. Adams, 629 F.2d 587, 593 n. 11 (9th Cir. 1980) (“[B]efore

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reaching a decision on the merits, we [are required to] address the standing issue to determine if

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we have jurisdiction.”). There are three requirements that must be met for a plaintiff to have

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standing: (1) the plaintiff must have suffered an “injury in fact”—an invasion of a legally

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protected interest which is both concrete and particularized and actual or imminent; (2) there must

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be a causal connection between the injury and the conduct complained of; and (3) it must be

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likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife,

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504 U.S. 555, 560-61 (1992); Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 847

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(9th Cir. 2001) (en banc). Here, plaintiff has not shown he has standing to sue because the

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complaint demonstrates only that the theft of the state’s laptop has the potential to injure plaintiff.

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Plaintiff alleges no actual misuse of his personal information stemming from the theft.

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Insofar as plaintiff alleges that prison officials were negligent, mere negligence does not
amount to a cause of action under § 1983.
For these reasons, the complaint fails to state a cognizable claim.
IV. No Leave to Amend
If the court finds that a complaint should be dismissed for failure to state a claim, the court

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has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-

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30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the

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defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see

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also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given

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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear

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that a complaint cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1005-06.

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The undersigned finds that, as set forth above, plaintiff lacks standing and his allegations

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show only speculative injury. Because the complaint does not state a cognizable federal claim,

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the court lacks supplemental jurisdiction over any state law claims. As it appears amendment
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would be futile, the undersigned will recommend that this action be dismissed without leave to

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amend.

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V. Motion to Dismiss

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Defendant Kelso has filed an unopposed motion to dismiss this action pursuant to Rule

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12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 7.) In conjunction with its

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recommendation that the complaint be dismissed for the reasons set forth above, the undersigned

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will recommend that defendant’s motion be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to
this action.

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IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion to dismiss (ECF No. 7) be denied as moot; and

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2. The complaint be dismissed without prejudice and this case closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: April 13, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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